ABC of

International
Law

ABC of International Law

Contents

Introduction

Glossary

10

Annex
Three prominent Swiss persons who have influenced
international law

40

Illustrations in the brochure: International law governs the behaviour of States towards each
other through bilateral and multilateral agreements and entails binding, internationally applicable
regulations.

ABC of International Law

Introduction

International law is the term used to refer to all legally binding rules that
apply at the international level. International law, which concerns the
way in which States behave towards one another, has a primarily regulatory function for the purpose of facilitating international cooperation
and giving it a predictable pattern on the basis of binding rules. One of
the main objectives of international law is to create the conditions for
international peace and stability.
Relations in the framework of international law have acquired greater
importance as a result of increasing globalisation, and have also become more complex. Since many of the problems which individual
States face today cannot easily be solved at the national level, modern
international law is of growing relevance in areas that were once the
exclusive domain of national law. These include individual rights, environmental protection and efforts to combat crime. The range of norms
and standards of international law extends from core peremptory rules
(such as the prohibition of the use of force and the fundamental human
rights guarantees), to basic institutional regulations (the law on treaties
or the law on international organisations), operational norms for cooperation (for example in the area of judicial assistance), and provisions
of a technical-administrative nature (for example air travel safety, radio
frequency allocations and food). The provisions of international law apply in a wide range of areas, as illustrated by the following:
Prohibition of the use of force: States must settle their disputes by
peaceful means.
Human rights: every individual may claim certain fundamental rights
(right to life, physical integrity, individual freedom, freedom of opinion,
freedom of conscience, etc.).1

Cf. ABC of Human Rights brochure (published by the Federal Department of Foreign Affairs
(FDFA); www.eda.admin.ch/eda/en/home/doc/publi/phumig.html

ABC of International Law

 Protection of persons in armed conflicts: international humanitarian

law contains rules that apply in times of armed conflict, in particular
for the protection of civilians, the wounded and prisoners of war.2
Fight against terrorism and other serious crimes: this can only be
prosecuted effectively through international cooperation.
Environment: regulations for the protection of the climate and the
conservation of natural resources will be more effective if universally
applied.
Trade and development: Switzerland earns half of its income abroad.
This is possible only thanks to the existence of a functioning, stable
international legal environment.
Telecommunications: without international regulations it would be impossible to telephone abroad.
Transport: ensuring that train and airplane passengers arrive safely at
their destinations requires international treaties.
International law is created by States and above all concerns the affairs
of States. Thus, for a long time only States were the subjects of international law. In international law each State is sovereign and equal under
the law big and small, rich and poor.
International organisations such as the United Nations have played an
increasingly important role in the past few decades. These organisations were created by the international community to respond to specific needs that are beyond the power of individual States. Today, there
are considerably more international organisations than there are States.
Only a relatively small number however are of truly global significance,
and many of them are part of the United Nations System or affiliated
with it. These international organisations are of considerable importance
for international law because they are taking on an increasing number of
tasks that traditionally belong to sovereign States. Furthermore, multilateral instruments of law are almost without exception negotiated in the
framework of these organisations, which have thus become the incubator of international law.
Cf. ABC of International Humanitarian Law brochure (published by the Federal Department of
Foreign Affairs (FDFA); www.eda.admin.ch/eda/en/home/doc/publi/pintl.html

2 

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Other intergovernmental organisations such as non-governmental organisations, transnational companies and academic institutions are as
a rule not subject to international law. The same can be said for individuals, although they too have increasingly come under the scrutiny of
international law since the middle of the 20th century. A growing number
of areas of international law concern the protection of individuals
and the responsibility of individuals. This is particularly clear in the way
human rights, international humanitarian law and international criminal law have developed. Individuals have thus become both holders of
rights and subject to obligations under international law which can be
invoked and upheld before international courts or by supervisory mechanisms with similar judicial powers. Modern international law has long
since ceased to be exclusively concerned with relations between States
in the narrow sense, extending directly into all aspects of daily life of
individuals, through the structures of States and international organisations.
Far from being exclusively concerned with establishing a legal framework for the international community, modern international law increasingly focuses on the protection and well-being of individuals. This inevitably has an influence on the meaning of national sovereignty, which
can no longer be seen as merely the (passive) right to defend the State
against foreign interference but also has an active aspect: the sovereignty of a State includes responsibility to provide for the safety and
well-being of its citizens.
As the influence of international law on the domestic affairs of States
steadily grows so its democratic legitimacy is increasingly being called
into question. The fact is that international law is created entirely differently than national law. Whereas domestic laws are created by elected
or appointed national representatives, international treaties are the result of negotiations between government representatives. Unlike in national legislative procedures, hardly ever will there be a vote in treaty

ABC of International Law

making. Negotiations usually continue until a compromise acceptable

to all States is found. The democratic element at the international level
lies in the principle of the equality of all States, big and small. Moreover,
it is the sovereign right of each State to decide freely whether to accept
the treaty that results from negotiations or not.
In Switzerland, international treaties are subject to approval by the Swiss
parliament (Federal Assembly) unless it has previously delegated this
right to the government (Federal Council). Furthermore, the Swiss electorate has the right to an optional referendum on any international treaty
that will have the force of national law. In some cases, treaties are even
subject to an obligatory referendum, for example those on whether or
not to join the United Nations or the European Union. Moreover, Swiss
citizens have a right to launch a peoples initiative even where the latter conflicts with international law. This right is only limited by peremptory norms of international law, such as the prohibition of torture, that
are binding on all States at all times without derogation. No other State
in the world grants its citizens such extensive rights to co-determination
with regard to international treaties as Switzerland. There is no justification for the broad assertion that international law is undemocratic.
When serious violations of international law occur, there is criticism that
international law lacks enforceability. Certainly, it is dreadful and unacceptable when serious violations of human rights or international humanitarian law remain unpunished, for example. The general perception
that international law is difficult to enforce is false however. To begin
with, even in the absence of a genuine world police force, most States do
observe international law. Furthermore, there are an increasing number
of international courts and authorities able, in certain circumstances,
to impose appropriate sanctions in the name of the international community. The most notable recent example is the International Criminal

ABC of International Law

Process for the conclusion of an

international treaty

National level

Contacts, consultations and political decision on

the start of negotiations

Depending on the content of the treaty, the Federal

Council must define a negotiation mandate. In
some circumstances this will require consultations
with the cantons or relevant associations.

International level

Negotiations

Depending on the situation federal administrative

units, the cantons and associations are consulted.
The task is to define the domestic and foreign
policy stance.

Initialling

Decision by Federal Council on signature

Signature

Granting of the full powers to sign

Domestic approval of the ratification bill, by:

the Federal Council
the Federal Assembly
the People (Referendum)

Deposit of the instrument of ratification

Issuance of the instrument of ratification

Entry into force

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Publication

Court in The Hague. Respect for international law primarily depends on

two main factors:
States have accepted their international obligations on their own free
will. This means that in principle they see the existence of international legal standards as in their own interest. Violations of norms by
one State are an encouragement for others to do the same which
can well turn against them.
Increased interconnection between States means that States that respect international law have an ever greater range of more or less
subtle ways to bring influence to bear on States that do not. In this
way, States that systematically evade their obligations under international law will eventually be marginalised.
When Switzerland adopts international legal norms and standards,
these take in principle precedence over any domestic laws that may
differ. Otherwise it would be difficult to ensure that Switzerland actually
does respect its international obligations. In practice, any conflicts that
might arise, i.e. that have not already been discovered and eliminated
at the time of ratification of an international treaty, can usually be resolved by means of a technique called interpretation in conformity with
international law: domestic law is thus to be considered in the light
of international law. Moreover, most international agreements can be
terminated.
Switzerland, which is no great political or military power, is committed
to ensure that international relations are governed by law rather than
by power. The Swiss Confederation plays an active part in creating,
updating and developing international law and ensuring its effective
application. This reflects the overall objective of Swiss foreign policy:
safeguarding the nations interests. The Swiss Confederation is committed to the goal of a peaceful and lawful international order (Art. 2
par. 4, Federal Constitution). This national objective is also the precept
underlying the various foreign policy objectives enshrined in Article 54

ABC of International Law

of the Federal Constitution, which include preservation of the nations

independence and welfare, contributing to the alleviation of need and
poverty in the world, promoting respect for human rights, democracy
and the peaceful co-existence of peoples, and the preservation of natural resources. These objectives can only be achieved in harmony and
with the help of international law. They require a functioning international
legal framework governing relations with other States and with international organisations.

ABC of International Law

Glossary

Ad hoc tribunals
Following the conflicts in Rwanda and the former Yugoslavia, the Security Council of the > United Nations established two ad hoc international
criminal tribunals to prosecute > War crimes, > Genocide and > Crimes
against humanity. The jurisdiction of these tribunals, unlike that of the
> International Criminal Court, is limited in duration, and to a specific
conflict.
There are other mixed courts, made up of local and international members of staff, which prosecute crimes committed in particular conflicts
or under specific regimes. Examples are the Special Court for Sierra
Leone, and the Extraordinary Chambers in the Courts of Cambodia for
the Prosecution of Crimes Committed during the Period of Democratic
Kampuchea.

Aggression
Aggression is the use of armed force by one > State against the sovereignty, territorial integrity, or political independence of another State.
Although international law in principle prohibits the use of military force
it allows for two exceptions: military self-defence in well-defined circumstances or in the context of measures to maintain or restore international peace and security on the basis of a decision taken by the
United Nations Security Council under Chapter VII of the > Charter of
the United Nations.
The international law concept of aggression involving two or more States
is not to be confused with the concept of aggression in international
criminal law. The latter addresses the criminal responsibility of individuals and is not yet based on an internationally recognised definition.

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Bilateralism
Term used to describe discussions or negotiations on foreign policy
matters that take place between two parties. Although the term usually
refers to relations between two > States, bilateral relations may equally
involve one State and an > International organisation. Switzerland for
example has concluded a whole series of bilateral agreements with the
European Union. A different approach to relations is that of > Multilateralism.

Charter of the United Nations (UN Charter)

The > International treaty that founded the > United Nations. The Charter defines the rights and obligations of UN member States as well as
the United Nations areas of responsibility and organs, as an > International organisation. Among other things the Charter enshrines the
> Prohibition of the use of force. A special feature of the Charter is that
the obligations it places on member States, such as the implementation
of > Sanctions imposed by the Security Council, take precedence over
other international treaty obligations. This feature gives the Charter the
character of a constitution although in fact no formal constitution exists
in international law.

Bilateral agreements I and II govern relations between

Switzerland and the EU. They cover such areas as freedom of movement for individuals, technical obstacles
to trade, procurement, agriculture, air and terrestrial
transport, research programmes, domestic security,
asylum, the environment or culture.

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Collective security
A system for keeping the peace in which all participating > States undertake as a fundamental principle to renounce recourse to military force
against other States, adopting instead collective coercive measures
against an aggressor (> Aggression). It differs from a purely defensive
alliance in that the aggressor can be a State which is itself a member of
the organisation for collective security. A collective security system of
this type is thus not only outwardly but also inwardly directed. A prime
example of such an organisation is the > United Nations which does not
however impose an obligation to participate in coercive military measures.

Convention
Standard term for multilateral agreements (> Multilateralism) concluded
as a rule in the framework of an > International organisation, and which
regulate issues concerning international relations and international law.
Examples: Vienna Convention on the Law of Treaties, the Hague Conventions and the Geneva Conventions.

Crimes against humanity

Acts intended to cause major suffering or serious impairment of physical or mental health qualify as crimes against humanity when committed
as part of a widespread or systematic attack directed against a civilian
population. In particular this includes murder, extermination, enslavement, deportation, deprivation of freedom in violation of the basic principles of international law, torture, rape, sexual enslavement, enforced
prostitution, enforced pregnancy, enforced sterilisation and similar forms
of serious sexual violence, persecution on political, racial, nationalist,
ethnic, cultural, religious or gender specific grounds, apartheid and the
enforced disappearance of persons.

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Customary international law

Along with international > Conventions, custom is one of the two main
sources of the rights and obligations of States (> sources of international law). Customary international law is referred to when States adopt
certain attitudes believing that they are acting in accordance with an
obligation.
For customary law to develop, two elements are required: the systematic recurrence of the same pattern of behaviour by States, and the
conviction of these States that they are acting in conformity with a rule
of international law (and not on the basis of ethics or civility).

The Kyoto Protocol of 1997 set out for the first time
binding regulations on the reduction of the emission
of greenhouse gases.

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Depositary
The depositary of an > International treaty is a > State or an > International organisation whose duties are primarily those of a notary and
include the safekeeping of documents, certification of documents, as
well as the acceptance, safekeeping and transmission of messages,
reservations and declarations.

Diplomatic protection
Diplomatic protection allows a State to intervene on behalf of its citizens
(individuals or legal entities) who have suffered prejudice of some kind
at the hands of another State in violation of international law. The State
alone decides on the appropriateness of such intervention. Diplomatic
protection is based on the following five principles:
In exercising diplomatic protection, a State asserts its own right.
A State can offer diplomatic protection only to its own nationals.
The exercise of diplomatic protection is possible only if another State
has violated international law.
The nationals in question must have exhausted all local remedies
available to them.
The injured party must not have caused or aggravated the prejudice
in question.

Dualism
According to this principle, norms and standards of international law
must be incorporated into the body of national laws in order to take effect within a country (in contrast to > Monism). Most States that practice
dualism have adopted a weakened version: the requirement of incorporation into national law applies only to > International treaties since
> Customary international law is in any case directly applicable. Examples of States that practice dualism are Germany, the United Kingdom
and Sweden.

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Erga omnes rules

The fundamental rules of international law, compliance with which a
> State is bound both towards other individual States and the international community. Examples of erga omnes rules include the prohibition
of > Genocide, protection against slavery and against racial discrimination, as well as the protection of other fundamental > Human rights.
Respect for these obligations is not only in the interest of States that
conduct relations in accordance with international law or customary international law but leads to the notion of responsibility towards all members of the international community. Any member of the international
community can hold a State responsible for the violations of the rules
in question. Although there is a relationship between erga omnes rules
and the international law concept of > ius cogens, there is a difference in
emphasis: in the case of erga omnes rules, it is the interest of the international community in seeing to their implementation that has priority,
while in the case of ius cogens, it is the nature of these norms and their
precedence over other international rules that is of prime concern.

Extraterritoriality
An important principle of international law holds that a > State can only
exercise jurisdiction on its own territory. Only in exceptional cases can
a nations laws or sovereign acts have legal effect outside its own territory. International treaties and binding decisions of international organisations may provide for such extraterritorial validity. Otherwise, a States
own laws may be applicable in situations arising outside its own territory only when justified by the closeness of the relationship between
the State and the object of regulation. Contrary to common belief, for
example, the ground on which an embassy is sited in a foreign country
does not have the benefit of extraterritoriality but remains the sovereign
territory of the > Host state. Embassies only benefit from inviolability, i.e.
they cannot be penetrated by the authorities of the host country without
the prior consent of the sending country.

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Genocide
Actions which aim at the complete or partial annihilation of a national,
ethnic, racial or religious group qualify as genocide. These actions include notably:
Killing
Inflicting serious physical or mental injuries
Measures designed to prevent births, or physically eliminate a particular group
Enforced transfer of children to another group.
In 1948, the United Nations adopted a convention to prevent and punish
genocide.

Host state
A State that hosts foreign representations (embassies, consulates) or
> International organisations on its soil. The host State grants these representations as well as the international organisations (and staff) certain
> Privileges and immunities. Switzerland, and in particular Geneva, is
host to a great many international organisations.

Human rights3
Human rights are the freedoms to which all individuals are entitled as
human beings, regardless of colour of skin, nationality, political or religious convictions, social status, age or sex. Human rights are protected through a system of agreements > Conventions, > Resolutions and
declarations of > International organisations as well as in > Customary
international law.
This international system for the protection of human rights is closely
associated with > International humanitarian law and international refugee law. But although closely related these three branches are quite
distinct in their fields of application. Thus international humanitarian law
(i.e. the four Geneva Conventions of 1949 together with the Additional
3
Cf. ABC of Human Rights brochure
www.eda.admin.ch/eda/en/home/doc/publi/phumig.html

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ABC of International Law

Protocols of 1977) applies in principle only to armed conflicts. International refugee law (e.g. the Geneva Convention relating to the Status of
Refugees of 1951 and the Additional Protocol of 1967) applies only to
persons with recognised refugee status, and to a limited extent also to
asylum seekers. Nowadays, however, human rights apply to all people
at all times.

Immunity
A fundamental principle of international law according to which neither a
> State nor its highest officials are subject to the jurisdiction of another
State. This is a corollary of the principle of the sovereign equality of
States and is part of > Customary international law. Since 2004, it has
also been codified in the United Nations Convention on Jurisdictional
Immunities of States and their Property, which is based on the draft
articles of the > International Law Commission. This convention grants
States immunity only with regard to sovereign acts. There is no immunity when an act of a State is comparable to commercial transactions. A
head of State enjoys immunity for acts carried out in an official capacity, even at the end of his or her tenure. However recent developments
indicate that there may be exceptions to this rule in the case of serious
human rights violations. Heads of State do not have immunity before
international criminal courts, since these are organs of the international
community rather than of individual States.

International arbitration
A type of > Peaceful settlement of disputes, by which the parties agree
to submit their differences to an arbitration tribunal (made up of one or
more arbitrators). They may refer to an existing dispute-settlement body
(e.g. > Permanent Court of Arbitration) or to a forum expressly created
for the purpose. The decisions of arbitration tribunals are binding on
the parties in all cases. Today, the settlement of disputes is of great im-

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17

portance in the realm of international investment protection law among

other areas. The appropriate arbitration clauses in bilateral investment
protection agreements make it possible for a private company to lodge
a direct complaint against a State before an international arbitration tribunal in the case of a violation of the terms of a contract.

International Court of Justice (ICJ)

The most important judicial body of the > United Nations. Based in The
Hague, the ICJ is composed of 15 judges elected by the General Assembly and the Security Council, with terms of office limited to nine years.
It can hand down decisions on legal disputes between > States that
have recognised its jurisdiction. Its decisions are binding on the parties.
The ICJ can also give advisory opinions on legal questions submitted
by United Nations organs or other specialised agencies empowered to
do so. While its advisory opinions are not legally binding they are highly
valued in view of the esteem which the ICJ enjoys in the international
community. Since opening its doors in April 1946 as the successor to
the Permanent Court of International Justice, the ICJ has handed down
more than 120 decisions in disputes between States, as well as 25 advisory opinions.

The 1992 Chemical Weapons Convention

prohibits the development, production,
stockpiling, transfer and use of chemical
weapons. It obliges States Parties to destroy
any stocks they might have

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ABC of International Law

International Criminal Court (ICC)

The International Criminal Court in The Hague prosecutes individuals for
serious crimes of international concern: > Genocide, > Crimes against
humanity and > War crimes. Once the international community has
agreed on a definition of the concept of > Aggression it will also have
jurisdiction over this crime. The ICC plays a complementary role, i.e. it
only steps in once it becomes clear that the national authorities primarily
responsible for prosecution are either unwilling or unable genuinely to
carry out the necessary investigation and prosecution.
The legal basis for the ICC is the Rome Statute which came into force in
2002. To date (2008) 108 countries have acceded to the treaty, including
Switzerland.

International criminal law

The branch of international law that provides for the criminal responsibility of individuals with regard to international crimes that have been
committed. Examples of international crimes are: > Genocide, > Crimes
against humanity, > War crimes and > Aggression (a definition of the
latter has yet to be agreed on by the international community). According to the principle of universal jurisdiction any State has the power to
prosecute and try in its own courts individuals deemed responsible for
the international crimes mentioned above. An example is the indictment
in Spain of the former Chilean head of State Augusto Pinochet, as a
result of which he was arrested on a visit to the United Kingdom. In the
1990s, special > Ad hoc tribunals on the model of the Nuremberg and
Tokyo trials were created by the United Nations Security Council for
international crimes committed during conflicts in the former Yugoslavia
and in Rwanda. Following the creation in 2002 of the > International
Criminal Court, individuals can, in certain cases, be prosecuted for international crimes before the Court, although any such proceedings are
subsidiary to those in national courts.

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International humanitarian law 4

International humanitarian law (IHL) is also known as the Law of Armed
Conflict, the International Law of War and ius in bello. It applies to all
armed conflicts, whether lawful or not. IHL makes an effort to balance
humanitarian and military interests. If total war and complete annihilation of the opponent is to be prevented, the parties to a conflict must not
be left free to wage war by all the means and methods at their disposal.
IHL is not only addressed to States, it also contains numerous provisions that must be complied with by individuals (including civilians).
In addition to > Customary international law, the main sources of IHL are
the universally ratified Geneva Conventions of 1949, their two Additional
Protocols of 1977, the Hague Regulation of 1907 (Hague Convention),
together with various other > Conventions prohibiting or restricting the
use of specific weapons. Most of the provisions of the Geneva Conventions, their Additional Protocols, or other provisions on the conduct of
hostilities have become part of customary international law.

International justice
To ensure universal respect for > International law and > Human rights
the international community has created various courts and tribunals
at the universal and regional levels. Their decisions are binding on all
States that recognise the courts and tribunals in question.
The > International Court of Justice (ICJ) in The Hague is the cornerstone of the system of international justice, being the principal judicial
organ of the > United Nations. Only > States can be subject to the jurisdiction of the Court. The authority of the ICJ, based on the principle of
the pre-eminence of law, enables it to make an important contribution to
the peaceful settlement of disputes between States.
Today, it is the European Court of Human Rights that is most effective
in protecting human rights. This Court, a body of the Council of Europe,
ensures compliance of the State Parties with their obligations under the

4
Cf. ABC of International Humanitarian Law brochure
www.eda.admin.ch/eda/en/home/doc/publi/pintl.html

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European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
Since the 1990s the international community has also created a number
of war crimes tribunals (> Ad hoc tribunals): the International Criminal
Tribunal for the Former Yugoslavia (1993), the International Criminal Tribunal for Rwanda (1994), the Special Court for Sierra Leone and the
Extraordinary Chambers in the Courts of Cambodia for the prosecution
of crimes by the Khmer Rouge (2004).
The creation in 2002 of the > International Criminal Court (ICC) in The
Hague has given the international community a permanent judicial authority of universal character to prosecute the most serious crimes:
> Genocide, > Crimes against humanity and > War crimes, as well as the
crime of > Aggression once it has been defined.
The International Tribunal for the Law of the Sea, which was set up in
1996, may be invoked by the States Parties to the UN Convention on
the Law of the Sea of 1982.

The 1972 Convention on International Liability

for Damage Caused by Space Objects sets out
the responsibility of States for any damage caused
by such objects that are launched into space and
return to earth.

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International law
International law stems from interaction between > States and governs
the relations between them. It provides a basis for peace and stability
throughout the world and for the protection and well-being of peoples
everywhere.
Relations between nations have become more intensive and complex
with the advance of globalisation. International law covers many fields,
including the > Prohibition of the use of force; > Human rights and the
protection of individuals in times of war and armed conflict (> International humanitarian law) as well as international efforts to combat
> Terrorism and serious crimes. It also extends into such areas as the
environment, international trade, development, telecommunications and
international transport.
In accordance with the principle of the > Sovereignty of States, a
State is only obliged to comply with those rules of international law to
which it has agreed to adhere (> International treaties and > Customary
international law). Peremptory norms of international law are an exception to this principle because they apply to all States without exception,
for example the prohibition of genocide (> ius cogens). In Switzerland,
matters of international law are usually decided by parliament, as well
as by the people through referenda, which may be obligatory or
optional. In principle, international law takes precedence over national
law (> Monism).

International Law Commission

A subsidiary organ of the > United Nations General Assembly. The International Law Commission consists of 34 recognised experts in international law, each elected by the General Assembly for a five-year period.
Their task is to further develop and codify international law. In this context, the Commission prepares draft treaties for submission to the General Assembly which can then recommend that the UN member States
conclude a multilateral > International treaty on the basis of the draft.

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The most important treaties concluded in this way are the Vienna Convention on the Law of Treaties, the Vienna Conventions on Diplomatic
and Consular Relations, the UN Convention on the Law of the Sea and
the Rome Statute of the > International Criminal Court. The reputation of
the Commissions members is such that their drafts have an influence
even when they have not yet been adopted by the member States in the
form of an international treaty. One example is the Commissions draft
articles of 2001 on the responsibility of States, which often serves as a
reference for legal decisions.

The Cartagena Protocol on Biosafety of 2000 is

the first international legal tool that specifically
addresses the safety of the environment and
human health in relation to the use of genetically
modified living organisms.

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International organisation
An international organisation is a permanent association of at least two
> States concerned with the autonomous execution of specific tasks,
and for this purpose is equipped with at least one organ to act on its behalf. International organisations are usually established on the basis of
a multilateral agreement, a statute or a charter, that defines their duties
and objectives as well as the organs to be established by the organisation. International organisations derive their international legal capacity
from States. In contrast to States as the born subjects of international
law, international organisations are created subjects. The most notable example of an international organisation which is truly universal is
the > United Nations.

The UN Convention on the Law of the Sea of 1982

is a comprehensive regime on the international
legal principles regarding the use and protection of
the oceans.

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International treaty
An international treaty is an agreement between > States, or between
one or more States and an > International organisation, laying down international rules in a given area. Together with > Customary international
law, the international treaty is one of the two fundamental instruments
forming the basis of the rights and obligations of States. Such agreements go under various names, but have equivalent meaning. These
names include > Convention, agreement, protocol, declaration, charter
(e.g. the > Charter of the United Nations), covenant, exchange of letters,
etc.

Interpretative declaration
Declaration by a State party to an > International treaty about how it
interprets one or more provisions of a treaty. An interpretative declaration is not to be confused with a > Reservation. Whereas in the case of a
reservation the legal effect of a treaty provision is annulled or amended
in some way, an interpretative declaration concerns admissible interpretation. In contrast to a reservation it does not therefore require acceptance by the other contracting parties.

Ius ad bellum, ius in bello

Ius ad bellum concerns the legality of the threat or use of military force.
It is regulated by the > Charter of the United Nations.
Ius in bello or > International humanitarian law only applies in an armed
conflict, regardless of the legality of such a conflict. It regulates both the
conduct of war and the protection of victims.

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Ius cogens
Denotes peremptory rules of > Customary international law to be observed in all circumstances. Any > International treaty or other legal acts
that are in violation of ius cogens are to be considered null and void. In
contrast to the related concept of > erga omnes rules (which all members of the international community must respect), ius cogens focuses
on the content of norms and their respective precedence. Rules that
are part of ius cogens include the > Prohibition of the use of force, of
> Genocide and of torture.

Monism
Principle according to which international law norms and standards automatically acquire validity at the national level (in contrast to a system
of > Dualism). The provisions of international law are accepted as part
of national law. In a monist system there is therefore no need for any
act of transformation into national law for an > International treaty or for
> Customary international law to have domestic application. Examples
of countries that have a monist system are France, the USA and Switzerland.

Multilateralism
An approach to international issues involving discussions and negotiations between more than two > States. Multilateral fora include such
> International organisations and bodies as the > United Nations, the
World Trade Organisation, the European Union and the Council of
Europe.
An ever greater number of international treaties or conventions (> Convention) are negotiated in these multilateral fora, reflecting the ongoing
process of globalisation.

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ABC of International Law

Neutrality
The legal status of a > State which permanently or temporarily renounces participation in armed conflicts. The Hague Conventions of 1907,
supported by > Customary international law, define the rights and duties
of a neutral State.
Essentially, a neutral State has the following fundamental rights: its territory is inviolable; private companies on its territory may trade freely
with the warring States; the freedom of private companies to trade also
applies to weapons, munitions and other war material.
Neutral States above all have a duty to refrain from participating in armed
conflicts between other States. They are expressly prohibited from supporting the belligerents with weapons or troops (and thus cannot take
part in a military alliance such as NATO). Furthermore they may not allow
warring parties to use their territory for military purposes. Any restrictions they adopt on trade in weapons, munitions and other war material
must apply equally to all belligerents. Finally, a neutral State must be
able to defend its own territory, if necessary by military force.
The status of neutrality is not relevant in the case of economic sanctions. Neutral States may participate in the application of economic
> Sanctions adopted by the > United Nations, the European Union or
any other group of nations.
Nor is neutrality relevant in the case of military sanctions adopted by the
UN Security Council acting under Chapter VII of the UN > Charter of the
United Nations. UN military sanctions should not be equated with war
as defined in the Law on Neutrality but rather with legal measures to enforce the decisions of the Security Council on behalf of the international
community for the restoration of peace and international security. Thus
the Law of Neutrality does not prevent neutral States from participating in sanctions adopted by the Security Council in accordance with
Chapter VII of the UN Charter.

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Non-governmental organisation
Non-governmental organisations (NGOs) are private-law institutions
which carry out their activities independently of State authorities. NGOs
can exercise considerable influence on public perceptions of issues and
situations, and on forming public opinion. They can obtain consultative status within an > International organisation, enter into cooperation
agreements, or carry out mandates, e.g. in the context of humanitarian
or protection missions.

Pacta sunt servanda

Latin expression meaning Treaties are to be honoured. > States and
> International organisations must carry out or comply with the provisions of the treaties to which they are party. This principle is one of the
main pillars of the international legal system. It is to be found in the
Vienna Conventions on the Law of Treaties of 1969 and 1986, which
state that: Any treaty in force binds the Parties and must be executed
by them in good faith.

The Convention for the Protection of the Architectural

Heritage of Europe of 1985 is considered to be one
of the most important agreements drawn up by the
Council of Europe for the protection of historical
monuments.

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ABC of International Law

Peacekeeping operations
International peacekeeping operations are an instrument of the international community for conflict resolution and crisis management. Both civilian and military means may be employed to create stable and peaceful relations. Since the end of the Cold War such operations have further
developed and today often involve a much wider variety of tasks, including peacekeeping and peace enforcement, conflict prevention, peacebuilding and peace consolidation, as well as humanitarian operations.
Peacekeeping operations are generally mandated by the United Nations
and are based on the following principles: impartiality, consent of the
conflicting parties to the deployment of peacekeeping troops, use of the
minimum force necessary.

Peaceful settlement of disputes

Procedures to achieve the peaceful settlement of a dispute between
two or more > States can take any of the following forms:
Negotiation, which is the first and most usual way of resolving disputes. A meeting between the States in question might for example
lead to an agreement.
Procedures involving good offices in which a third State mediates
between the parties and ensures the material organisation of a meeting.
Conciliation and resolution procedures in which a third State or a conciliation commission proposes a solution to the parties concerned,
which is however not binding.
Inquiries, which in principle serve to establish the facts only.
In the case of an arbitration procedure a panel of individuals designated by the parties has the power to make a final decision, which is
binding.
The States concerned may also submit the case to the International
Court of Justice, whose decisions are binding (> International Court
of Justice).

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Permanent Court of Arbitration

An > International organisation with over 100 member States. The Permanent Court of Arbitration (PCA) is not a court in the usual sense but
rather a forum providing services in the context of the > Peaceful settlement of disputes. For this purpose the PCA is able to call upon a pool of
qualified arbitrators together with the necessary administrative personnel. The PCA was founded by > International treaty in 1899, making it
the oldest universal mechanism for the settlement of disputes between
> States. Today, the Courts services are in demand for disputes of all
kinds involving not only States or international organisations but also
private companies and even individuals.

Privileges and Immunities5

Prerogatives, tax exemptions and other advantages accorded to members of a diplomatic mission and their families as well as to individuals
enjoying an equivalent status (for example international civil servants).
These privileges and immunities include freedom of communication between the diplomatic mission and the authorities of the sending State;
the inviolability of diplomatic staff, i.e. they may not be arrested or detained; the inviolability of diplomatic premises, i.e. the local authorities
may not have access without prior authorisation from the head of the
diplomatic mission; immunity of jurisdiction, i.e. legal action is not permitted against a diplomatic agent or his/her family; and tax concessions.
Privileges and immunities are not accorded for the personal benefit of
the individuals concerned but rather to enable them to perform their duties in complete independence from the receiving State.
Those who enjoy such privileges and immunities are expected to respect the laws of the host country (Article 41 of the Vienna Convention on Diplomatic Relations and Article 55 of the Vienna Convention on
Consular Relations).

Cf. ABC of Diplomacy brochure

www.eda.admin.ch/eda/en/home/doc/publi/pdipl.html

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ABC of International Law

Prohibition of the use of force

The > Charter of the United Nations prohibits > States from resorting to
armed force. War is prohibited as a matter of principle. The UN Charter
does however permit the use of force in two specific instances:
A State has the right to self-defence and to the use of military means
in order to repel an armed attack on its territory until such time as the
Security Council has taken appropriate measures.
States may take steps to maintain or restore international peace by
force with the express authorisation of the Security Council on the
basis of a > Resolution under the terms of Chapter VII of the UN Charter.

Recognition
Declarative statement by one State that a new > State has come into
being. With the act of recognition, a State expresses its acceptance of
a newly independent territory as a State with which it is ready to deal at
the intergovernmental level.
In principle, Switzerland recognises only States, not governments. A
change of power in a State or a change in the form of government will
thus have no effect on the recognition granted. A newly independent
territory does not have an automatic right to recognition as a State. This
is a voluntary act and may be made conditional.

Reservation
Declaration made by a State party to a multilateral treaty by which it announces its intention to exclude or change the application of a clause
in the treaty. Reservations enable more States to become party to the
treaty but are not conducive to its uniform application. An > International
treaty may exclude the possibility of reservations, or limit them.

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The UN Convention against Corruption of 2003

addresses the prevention of corruption and its
punishment, as well as the regulation of procedural
questions and international cooperation between
States Parties to the Convention. It set out for the
first time at the multilateral level binding rules on
the restitution of illegally acquired assets.

Resolution
Decisions taken by an > International organisation and international
conferences are called resolutions. Resolutions have a standardised
format. They begin with a preamble, which is followed by a number of
operative paragraphs. Most resolutions are not legally binding but have
the character of a recommendation, as is the case for the resolutions
of the General Assembly of the > United Nations (with the exception of
those concerning the UNs internal law). Some resolutions of the United
Nations Security Council can also have immediate effect and be binding
on all > States. Occasionally, other terms are used in place of resolution including decision, recommendation, declaration or other similar
terms.

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ABC of International Law

Sanctions
The measures (diplomatic, economic or military) taken by a > State or
an > International organisation to bring about an end to a violation of
international law. Violations can be ascertained by an organisation or by
a State which considers itself to be a victim.
The UN Security Council, on behalf of the international community, is
responsible for declaring what sanctions are to be taken against a State
that is endangering international peace.
The World Trade Organisation decides on sanctions in cases of violations of international trade rules.
In other areas, States may take whatever non-military sanctions they
deem necessary, providing they are proportionate to the damage inflicted by the offending State. The > Prohibition of the use of force is
enshrined in the UN Charter. Sanctions may only be implemented after
due notification.

The European Convention on Human

Rights of 1950 includes the principal
rights and freedoms such as the right to
life, the right to liberty and security and
the freedom of expression.

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Self-executing
A provision of international law is said to be self-executing when the
rights and duties it establishes are sufficiently precise and clear in their
formulation. In this case the provision is directly applicable by domestic
courts and authorities. If on the other hand the provision of international
law is only programmatic in character it must be given concrete shape
in the form of national law before it can be applied by the courts or authorities (non self-executing).
The self-executing concept is particularly relevant in States that practise > Monism, in which case international law has automatic application. It can also be relevant in States that practise > Dualism, depending
on the nature of the legal transformation required.

Signature, ratification and accession

An > International treaty is signed by the plenipotentiaries at the end
of the treaty document. The act of signing marks the conclusion of the
treaty. It is then incumbent on the > State to act in good faith in accordance with the provisions of the treaty. Unless the treaty provides
otherwise, however, signing does not yet make the State a contracting
party.
It is only after ratification that a State is bound in international law to observe the terms of the treaty in question. In Switzerland, it is the task of
the Federal Assembly to approve ratification of treaties. In exceptional
cases the government (Federal Council) may be empowered by law or
treaty to sign and ratify a treaty by itself.
In the case of accession, a State becomes party to a treaty through a
single act without prior signature.

Soft law
In addition to a legally binding > International treaty there are a number
of other international instruments, which although not legally binding

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ABC of International Law

are nonetheless intended to hold a > State or > International organisation to a certain form of behaviour (to do, or to refrain from doing). One
example is a > Resolution of the > United Nations General Assembly,
which has the character of a recommendation. These soft texts create expectations as to the behaviour of those being addressed, which
the latter often find difficult to ignore. Soft law can eventually develop
into > Customary International Law and ultimately acquire the status of
a binding rule.

Sources of international law

The sources of international law are > International treaties and > Customary international law together with general principles of law. The
latter are legal principles that are recognised in most of the worlds legal
systems, for example the obligation to act in good faith. For the interpretation of these sources, use is also made of the decisions of courts
as well as the writings of recognised international law experts. The most
authoritative list of international law sources is given in Article 38 of the
Statute of the > International Court of Justice.

Sovereignty
At the international level a > State is regarded as sovereign if it is independent of all other entities subject to international law (States or
> International organisations). Consequently the State has no obligations except those it entered into itself and those imposed by peremptory norms of international law (> Ius cogens).

State
The State is the fundamental legal entity in the framework of international law. States are considered to be the born i.e. original subjects
of international law. Legal capacity under international law is inherent to

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35

the State: States hold all rights and duties in international law and are
fully entitled to enter into an > International treaty and to contribute to
the creation of > Customary international law.
The State comprises three elements: its territory, its people and its government. Affairs between States are regulated by the principle of sovereign equality (> Sovereignty).

Terrorism
The concept of terrorism has not yet been defined in > International
law. International law, > Human rights and > International humanitarian
law nonetheless do prohibit many terrorism-related acts and activities.
In fact, according to international humanitarian law (IHL), acts generally
considered as acts of terrorism, such as attacks on the civilian population or civilian objects, indiscriminate attacks and hostage taking are
prohibited both in international and non-international armed conflicts.
Moreover, IHL prohibits acts or threats of violence whose primary purpose is to spread terror among the civilian population.
The so-called War on Terror is a political concept, not a legal one. IHL
applies exclusively to armed conflicts, for example in Afghanistan and
Iraq. It does not apply to other situations associated with the War on
Terror, such as the attacks in Madrid and London in the years 2004 and
2005. This is not to say that terrorist acts and efforts to combat them are
not covered by law: human rights, the relevant national laws and various
international > Conventions that deal with combating terrorism are applicable in such situations.

United Nations (UN)

The UN is an > International organisation of truly global reach. It has 192
member States (summer 2008) and provides a forum for the discussion
of all topics of international significance.
The UN promotes international peace and security, the defence of

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ABC of International Law

> Human rights, the reduction of social inequalities and protection of the
environment. It also provides humanitarian aid in international emergencies.
The main organs of the United Nations are the following:
The General Assembly (representatives of the member > States),
which deliberates on matters of international order;
The Security Council (15 member States), which is responsible for the
maintenance of international peace and security;
The Secretariat, which is responsible for administrative matters and
for implementing the decisions of the other organs;
The International Court of Justice, which is the principal judicial organ
of the UN (> International justice).
The United Nations System also includes many specialised agencies
which have the status of a legally independent international organisation and are linked to the United Nations System through special agreements (for example, the World Health Organisation, WHO).
Switzerland became a full member of the United Nations in 2002. Before
that date (i.e. since 1948), the Confederation only had observer status
although it was also a member of many specialised agencies.

The 1984 UN Convention against Torture prohibits

acts of torture under all circumstances. Neither
war or domestic unrest nor orders from a superior are acceptable justification for torture.

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War crimes
War crimes are grave breaches of the provisions of the Geneva Conventions of 1949 protecting persons and objects, as well as other serious
violations of the laws and customs that apply in an international or noninternational armed conflict. War crimes include notably: wilful killing,
torture, deportation, ill treatment, unlawful detention, hostage taking,
wilful attacks against civilians and civilian objects, the recruitment of
children in armed forces, and pillage. > States are under an obligation
to prosecute or extradite persons suspected of having committed war
crimes on their territory.

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39

Annex

Three prominent Swiss persons who have

influenced international law
The issue of regulating the peaceful co-existence of nations has occupied the minds of legal scholars and philosophers for many centuries. Three Swiss lawyers, namely Emer de Vattel, Max Huber and Paul
Guggenheim, have had a major influence on the development of international law.

Emer(ich) de Vattel (17141767)

Swiss philosopher, legal theorist and diplomat. In his main work entitled
Droit des gens, ou principes de la loi naturelle appliqus la conduite
et aux affaires des nations et des souverains 1,published in 1758, de
Vattel set out the foundations of modern international law. He attempted to mould the principles of the liberal German philosopher Christian
von Wolff into a legal system. His thesis was especially well received in
the United Kingdom and the New World. Although the derivation of his
basic premises from natural law is only partially accepted nowadays,
many of his conclusions remain valid and still influence international legal thought:
the legal personality of States (and not of Princes) in international
law;
the idea of sovereignty and formal equality between nations;
the principle of non-intervention in the domestic affairs of other
States;
the pacta sunt servanda precept (treaties are to be honoured) as the
basis for an international community;
1

The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs
of Nations and of Sovereig

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 the meaning of neutrality;

the requirement that States actions must respect the principle of the
rule of law and be founded constitutionally.
De Vattel was born in 1714 in the Val de Travers near Neuchtel, which
was under Prussian influence at that time. After studying philosophy
in Basel and Geneva, around 1742 he went to Dresden where he enjoyed the patronage of Prime Minister Heinrich von Brhl and soon
joined the diplomatic service of Saxony. He represented the principality in Bern although he resided mostly in Neuchtel. In 1758, de Vattel
was appointed privy councillor at the court of Prince Elector Frederick
August II. De Vattel died in Neuchtel in 1767.

Max Huber (18741960)

Max Huber was born in Zurich in 1874. Between 1894 and 1897, he
studied law in Lausanne, Zurich and Berlin, obtaining a doctorate at
the latter university in 1897. After several study periods abroad he was
appointed professor of constitutional law, canon law and public international law at the University of Zurich in 1902. In addition, he was a
permanent legal advisor to the Federal Political Department, which later
became the Federal Department of Foreign Affairs. He represented Switzerland at the 2nd International Peace Conference in The Hague in 1907
and at the Paris Peace Conference in 1919. He led a number of Swiss
delegations in various bodies of the League of Nations. Between 1920
and 1932, he was a member of the Permanent Court of International
Justice in The Hague, taking on the role of President between 1924 and
1927. In addition, in 1928, Max Huber was President of the International
Committee of the Red Cross (ICRC) and had a major influence on its
activities. After retiring in 1944, he continued as honorary president of
the ICRC, in which capacity he was awarded the Nobel Peace Prize in
1945.

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Throughout his career Max Huber promoted a concept of international

law which favoured the interests of the international community. For him
international law was not a doctrine but first and foremost a means to
establish a peaceful order based on international cooperation.

Paul Guggenheim (18991977)

Paul Guggenheim was born in Zurich in 1899. He studied law in Geneva,
Rome and Berlin, obtaining a doctorate in 1924. He returned to Geneva
in 1928 after a period working in Kiel and gaining his habilitation (the
required qualification to teach at a university). From 1930 and for over
40 years he lectured at the Graduate Institute of International Studies,
gaining a full professorship in 1941. In 1955, he took over the chair of
international law at the University of Geneva and also lectured in The
Hague and Bruges. At the same time, he was a judge, an attorney and a
legal advisor for various governments and international organisations. In
the Interhandel Case, when Switzerland instituted proceedings against
the United States before the International Court of Justice in 1957, Paul
Guggenheim represented Switzerlands interests.
His formula of neutrality, solidarity, availability and universality served
as a guiding principle for Swiss foreign policy after the Second World
War. In addition to his many publications, it was first and foremost
Guggenheims teaching which shaped Switzerlands profile as a stronghold of international law. His principles still influence the many outstanding experts in international law working in Switzerland today.

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43

Impressum
Editor
Swiss Federal Department of Foreign Affairs (FDFA)
3003 Bern
www.eda.admin.ch
Design
Swiss Federal Chancellery / Peter Auchli
Print
Stmpfli Publikationen AG, Bern
Orders
Information FDFA
Tel.:
+41 (0)31 322 31 53
E-mail: publikationen@eda.admin.ch
Specialist contact
FDFA, Directorate of Public International Law
Tel.:
+41 (0)31 322 30 82
E-mail: DV@eda.admin.ch
This brochure is also available in German, French and Italian.
Bern, 2009

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